Encinitas Sign Ordinance Unfairly Limits First Amendment Rights

Published: July 31, 2015

Two Sign Limit and 30-Day Period Unconstitutionally Restrictive

By adopting, maintaining, and enforcing a two-sign limit on yard signs, the City of Encinitas is violating the public’s right to freedom of speech, charges a lawsuit filed in federal district court this week.

Americans have used political signs for hundreds of years to participate in the political process. Encinitas adopted a stringent cap on yard signs that violates the hallowed right of homeowners to speak out to their neighbors on candidates and issues they care about. The ordinance prohibits property owners from posting more than two temporary yard signs at any time outside of thirty days before an election and three days afterwards.

“The right of individuals to participate in civic life is critical to the political process,” said David Loy, legal director of the ACLU of San Diego & Imperial Counties. “Political signs are one of the few means of speech guaranteed to reach people in the community. They can change the channel or close the website, but they can’t turn off a sign in someone’s yard.”

The First Amendment is clear on this question. “Congress shall make no law…abridging the freedom of speech.” At the core of free speech is political speech; indeed, the courts have ruled political speech is the most compelling and urgent function of the First Amendment. Because they are relatively inexpensive, political signs, supporting or opposing a candidate or cause, form an essential part of public discourse on the matters of the day. They are also critical for persons of limited mobility who may be unable to participate in other forms of civic engagement such as leafleting or demonstrating.

“This restriction chills the public’s right to free speech,” said Andrew Woodmansee, head of litigation at Morrison Foerster. “It impairs the ability of Encinitas residents to speak on candidates or issues outside of the thirty-day window, though doing so could significantly contribute to their success on Election Day. It limits residents to commenting on the vast array of candidates and issues that routinely are placed on each ballot. And it curbs their right to speak out on important issues that aren’t on the ballot.”

The lawsuit was filed on behalf of plaintiff Peter Stern, a long-time resident of Encinitas and an author and political activist. He has never missed voting in a general election, regularly contributes time and funds to support campaigns he believes in, and, under concern that he could be cited, has complied with Encinitas’ unconstitutional restriction though he has wished to post more than two signs.

“The City of Encinitas cannot justify this draconian limit on the number of yard signs in residential areas,” said Woodmansee. “It has other means available to protect aesthetic or safety hazards, such as existing regulations on size, design, and placement of signs.”

Potential alternatives cannot substitute for the unique effectiveness and convenience of yard signs. For example, it is not feasible to place multiple messages on individual signs because they would be virtually unreadable by passersby and could have the effect of causing a distraction to drivers, increasing traffic hazards rather than eliminating them, as the ordinance is ostensibly intended to do.

The lawsuit asks the district court to permanently enjoin the City of Encinitas from enforcing the two-sign cap, to declare the two-sign cap unconstitutional, and to award attorneys’ fees and costs.